Right to Work for Refugees in Hong Kong: A Constitutional Study

Published on . Posted in Blog

By LAM Man Ka, CHAN Evelyn, LI Yu Ting, and CHAN Ho Hin Jacky, LLB students at the Chinese University of Hong Kong (CUHK)

Refugees deserve more attention in Hong Kong. Source: Asia Times/Handout

Refugees,  asylum seekers and torture claimants  constitute  less  than one percent of Hong Kong’s (HK) population.[1]

However, the law imposes extensive restrictions on their right to work and provides inadequate protection for other socio-economic rights. This essay examines refugees’ right to work in HK from a constitutional perspective.   

The constitutionality of executive decisions restricting refugees’ right to work has been a controversial issue in HK. The readiness of HK courts to comply with international treaties such as the International Covenant on Civil and Political Rights (ICCPR) is evident in R v Sin Yau-ming (1991).[2]  Nevertheless, the courts have been reluctant to acknowledge the right to work as a constitutional right, even though this is a fundamental socioeconomic right in the International Covenant on Economic, Social and Cultural Rights (ICESCR).  Article 39(1) of the Basic Law (BL) provides that both the ICCPR and the ICESCR “shall be implemented through the laws” of the HKSAR.[3] As derived from our interview with Annie Li (Research and Policy Officer, Justice Centre Hong Kong), the reason for this is grounded in HK’s dualist approach to international law. Ribeiro PJ’s judgment in Ubamaka Edward Wilson v Secretary for Security & Anor demonstrated the dualist legal tradition, as he concluded that ratified international treaties are not legally binding if not translated into domestic law.[4] Thus, GA v Director of Immigration, which cited  Ubamaka, explicitly  states  that  the  right to work under Article 6 of the ICESCR is not enforceable.[5]  

Michael Ramsden, a professor at the Chinese University of Hong Kong Faculty of Law, argues that BL Article 39(1) is merely a “constitutional guarantee” that ICESCR would continue to be effective after the Handover of sovereignty from the U.K. to the PRC and that domestic legislation incorporating ICESCR would be conferred with constitutional status.[6] While we partially agree with this claim, Ramsden’s interpretation of the provision is limited. Since BL Article 8 already fulfills the purpose of ensuring “laws previously in force” will continue to be in effect, BL Article 39(1) would be redundant in practice if Ramsden’s interpretation was authoritative.[7 In order to move beyond this narrow interpretation, we would like to assert that the use of future tense “shall” implies that the Legislative Council has a constitutional obligation to implement ICESCR into local law. But legislators have yet to integrate ICESCR into domestic legislation holistically.[8] 

The ambiguity surrounding the legal status of the ICESCR in Hong Kong further deprives refugees of their fundamental rights. In  Mok Chi Hung  v  Director of Immigration, Cheung J stated that the ICESCR should merely be used as a “framework” for the executive’s decision-making.[9]  Although it is a constitutional requirement for policies and legislation to be sufficiently clear and accessible to the public under the “prescribed by law” principle in BL Article 39(2), the government could potentially restrict rights without proper justification if the ICESCR is only treated as a reference document. Hence, we argue that the partial implementation of the ICESCR is unconstitutional due to the uncertainty in the law, as refugees, among other vulnerable groups, would not be able to understand which rights actually apply to them. In  Chan To  Foonv Director of Immigration, the Court of  First Instance stated that ICESCR is “aspirational” and not legally binding.[10]  However, there have been examples where the ICESCR has been implemented in executive decisions, such as facilitating a minimum living standard and providing social welfare through the Social Welfare Department’s Humanitarian Assistance  Programme. This suggests that rights under the ICESCR are not entirely “aspirational” in nature. Therefore, refugees’ right to work may also be incorporated under the current legal framework for socio-economic rights.   

When juxtaposed to the idealism shown in ICESCR (which states that everyone should enjoy the right to work), a potential  solution would be to incorporate the  Convention Relating to the Status of the Refugees into domestic legislation, as it explicitly states that refugees should enjoy the right to work. However, this is not realistic in the context of HK. According to BL Article 151, the HK government has no authority to “implement agreements on its own” with “international organizations” for human rights.[11]  This is because the types of agreements stated within the exhaustive list of the BL do not mention human rights. Taking this limitation into account, it is only reasonable to further investigate solutions concerning the right to work from different ways of implementing the ICESCR.   

One possible solution would be to integrate the ICESCR into local legislation, which would bestow the domestic law with a constitutional status. The language of the domestic law incorporating ICESCR should be amended by the legislature to precisely define the rights, allowing it to be reasonably foreseeable and legally enforceable. Under these circumstances, all legislation enacted by the legislature and administrative decisions made by the executive must correspond to the BL. Otherwise, they would be  ultra vires  and declared invalid under the doctrine of constitutional supremacy.  

Another possible solution would be to emulate the approach taken by courts of the United Kingdom (UK), which also follow the dualist legal tradition. When interpreting legislation, British courts assume that legislation is not intended to contravene the UK’s duty to comply with ratified international treaties. Thus, even though the ICESCR is not incorporated into UK domestic law, legislators must take its provisions into account when passing laws.[12 HK courts (under the BL Article 84) could apply this assumption by using the British case  Litster  v Forth Dry Dock & Engineering Co. Ltd.[13]  as persuasive authority. This would ensure consistent application of the ICESCR and grant refugees natural justice when claiming their rights.   

Currently, statistics on the number of refugees granted the right to work and information on the process of executive decision-making are not public. Thus, we suggest that the public should be able to hold the government accountable and ensure that the executive adheres to the relevant laws, particularly when the Director of Immigration’s exercises discretionary power in giving refugees permission to be employed. This can be achieved by increasing the transparency of the procedure. Regardless of the solution adopted, refugees should receive basic protection of their right to work to ensure that they will have a reasonable standard of living.  

The views expressed in this post are the author’s own and do not necessarily reflect Justice Centre’s stance. 

References:

  1. Facts. (n.d.). Retrieved from http://www.justicecentre.org.hk/facts/.
  2. R v Sin Yau-ming (1991) 1 HKPLP 88, [1992] 1 HKCLR 127.
  3. Basic Law Full Text – chapter (1). (n.d.). Retrieved from http://www.basiclaw.gov.hk/en/basiclawtext/chapter_1.html.
  4. Ubamaka Edward Wilson v Secretary for Security & Anor [2013] 2 HKC 75.
  5. GA v Director of Immigration (2014) 17 HKCFAR 6.
  6. Using International Law in Hong Kong Courts: An Examination of Non-Refoulement Litigation. Common Law World Review (2013)Retrieved from http://journals.sagepub.com/doi/abs/10.1350/clwr.2013.42.4.0259.
  7. Basic Law Full Text – chapter (1). (n.d.). Retrieved from http://www.basiclaw.gov.hk/en/basiclawtext/chapter_1.html.
  8. Using the ICESCR in Hong Kong Courts. Hong Kong Law Journal(2012). Retrieved from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2160777.
  9. Mok Chi Hung v Director of Immigration [2001] 2 HKLRD 125.
  10. Chan To Foon v Director of Immigration [2001] 3 HKLRD 109.
  11. Basic Law Full Text – chapter (1). (n.d.). Retrieved from http://www.basiclaw.gov.hk/en/basiclawtext/chapter_1.html.
  12. Judicial Committee on Human Rights of The House of Commons (2004) The International Covenant on Economic, Social and Cultural Rights Twenty-first Report of SessionRetrieved from https://publications.parliament.uk/pa/jt200304/jtselect/jtrights/183/183.pdf (27 March 2018.
  13. Judicial Committee on Human Rights of The House of Commons (2004) The International Covenant on Economic, Social and Cultural Rights Twenty-first Report of Session. Retrieved from https://publications.parliament.uk/pa/jt200304/jtselect/jtrights/183/183.pdf (27 March 2018 ).

Torture survivors in Hong Kong: to protect or to exclude?

Published on . Posted in Advocacy, Blog, LEGCO, Refugee, Torture

IMG_7640

Justice Centre’s submission ahead of the LegCo session on June 7.

Posted by Jordan Johnson

On June 7, about three weeks before the International Day in Support of Victims of Torture, the Hong Kong Legislature invited residents to speak with them at the “Legislative Council Complex” (‘LegCo Complex’) about the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (‘UNCAT’). In anticipation of coming elections, in January this year Hong Kong’s Chief Executive, Leung Chun-Ying, suggested pulling out of the UNCAT to deal with what has been described as Hong Kong’s “fake” refugee problem. With a laptop and a few colleagues from Justice Centre Hong Kong, I went to the LegCo Complex to take notes ahead of the next session on UNCAT when our Executive Director would give a deputation about protecting torture survivors.

The LegCo Complex is an awe inspiring display of wealth fitting for the “multimillionaire capital of the world.” Walking through the building, one has the impression of living some twenty years in the future. The outer walls are “double-layered,” “ventilated” glass “curtains”, which apparently cool the building while still flooding its centre with light. On the roof, “a variety of plants” provide a “green landscape” and “reduce solar heat gain.” The escalators, we quickly discover, are motion activated, a source of some confusion and several momentary losses of balance on June seventh. Beside electronic lockers, grey suited attendants wait to hand you a receipt that prints automatically.

1 protection claimant: 20 millionaires

While a rise in the number of people seeking asylum has caused concern throughout the world, Hong Kong citizens have, according to any objective measure, very little to worry about. There are only about 11,200 people seeking protection in Hong Kong; in other words, far less than one percent of the population. For some points of reference: in Hong Kong there are over 200,000 millionaires; which is to say, about twenty millionaires for each protection claimant; in Turkey there are now nearly three million refugees; in Greece, a country with a population about the size of Hong Kong’s and an economy that is significantly smaller, there are nearly four times more people seeking protection than in Hong Kong.

Not only are there few protection claimants coming to Hong Kong, the government currently operates one of the least generous protection systems in the developed world. The Immigration Department, in ostensible accord with international standards, assesses whether protection claimants face a real risk of torture, persecution, cruel, inhumane, or degrading treatment if returned to their country of origin. However, while recognition rates internationally are around 30%, in Hong Kong only 0.6% of protection claimants are found by the authorities to face such risk/s. In addition, Hong Kong has not signed the 1951 UN Refugee Convention and does not recognise anyone as an actual “refugee”; those who are fortunate enough to make it into the 0.6% are simply safe from removal until the UN Refugee Agency is able to find another country willing to accept them for resettlement, depending on their case.

Rhetoric

After being handed our locker receipts, we have our way to the conference room pointed out by more grey suited attendants positioned crumb-like, every four or five meters along the path. In the upper mezzanine of Conference Room One, the seats and carpet match the grey of the attendant’s uniforms, which I notice has an azure tinge that seems in keeping with the Complex’s “Sky is Always Blue” design theme and its commitment to harmony with the natural environment; both of which you can read about at length on the Legislative Council’s website. Among the many “green-features” described online, I am most impressed by the coruscated “natural light funnel,” which directs and scatters sunlight into the Council’s Chamber “minimiz[ing] the use of artificial light.” Before finally sitting down, we are handed headphones so that we can hear, in one of three languages, what brought each speaker to the Complex today.

The first speaker oddly has not prepared any remarks, but speaker two enthusiastically introduces the theme of the session: the legislature needs to do more to protect residents from protection claimants. After describing himself as an “ordinary citizen,” a self-description we’ll hear again and again today, he goes on to say that “refugees” are responsible for threats, murder, and violence; that they’re a “cancer” that needs to be excised; that Hong Kong has spent billions of taxpayer dollars on them. He quickly continues, testing my transcription skills and surely the skills of the live translators, insisting that they’re not “real” refugees, they’re using “legal loopholes” to come to Hong Kong and make money, and that Hong Kong needs to be more severe to prevent others from coming.

At the three minute mark he is cut off abruptly and speaker number three begins. It turns out there is a three minute rule that is strictly enforced, obliging the following speakers to compress their worries into what turns out to be one sonata like recitation of xenophobic motifs after another, all of which you could hear pretty much anywhere in the world. Donald Trump’s Mexican-rapist remark is echoed, though here it is used in reference to Southeast Asians. Hong Kong “No-Go Zones” are referred to in different terms. You can hear France’s Marine Le Pen in claims that Hong Kong’s culture is being threatened, and, most jarring, you can hear echoes from Europe’s past in demands that the refugees be placed in closed camps.

IMG_7641

Our Executive Director, Piya Muqit, speaking at LegCo on June 11.

While the rhetoric is in most respects generic, there remains, nonetheless, a flavour of the local. There is no more familiar a claim than “we would like to help torture survivors and other people seeking protection, but we just don’t have the means.” The Hong Kong variation on this theme has the speakers arguing, with only an occasional sense of irony, that Hong Kong is weak, is a child, is poor in relation to the West that is strong, adult, and rich. Respect for human rights, it is argued repeatedly, is fine for the adult West, but Hong Kong is simply not capable of providing protection for refugees, even if it wanted to – though to be sure it is clear these speakers do not want it to. An older man who makes this argument goes on to explain that while Hong Kongers fight with fists, refugees fight with spades, chains, and cement bags.

A system to exclude

Near the end of the session, I’m having trouble transcribing the increasingly rapid speeches, and I am not being helped by the seemingly exhausted translators who are now switching off mid-speech. Mercifully, a woman begins to speak in slow, deliberate English. After thanking the legislature for the opportunity to speak, she says her name is Adella, she’s a protection claimant from Africa, and she needs the government’s protection. She does not tell us why she fled her country, but the threat she faces in Hong Kong is felt palpably in a room full of Hong Kongers who appear to consider her part of a cancer. She goes on to suggest what should be obvious: the government’s asylum policies, which reject 99.4% of claims and offer a life of legal limbo to the  remaining 0.6%, function to deny meaningful protection to the one person in the room who actually needs it. After the session finishes, we see Adella on our way out of the Complex surrounded by photographers with snapping cameras. It is common now for protection claimants to hide their face in similar situations for fear of being targeted by the government or other Hong Kongers, but Adella just smiles nicely and keeps walking.

The Legislative Council Complex was completed in 2012 as a part of the larger five billion dollar Tamar Project. The project includes the massive Central Government Complex built to resemble an open door and the 17,000 square metre Tamar park with “spacious green lawns, rolling out like ‘green carpets” to the edge of Hong Kong’s “picturesque Victoria harbour.” The Legislative Council website explains that the design was meant to “integrate both elements of…openness and empathy.” While Hong Kong’s judiciary has made meaningful reforms aimed at providing protection for torture survivors and other claimants, the effect has been to create the appearance of protection while reinforcing a system designed to exclude. One hopes that the legislature will overcome the politics of fear so that in twenty years time, when we’re all used to motion activated escalators and a little more natural light indoors, Hong Kong’s commitment to openness and empathy won’t be realized in architecture alone.

_MG_2484 copyJordan Johnson is a member of the Protection Claimant Services team at Justice Centre Hong Kong. He is an American student pursuing a  JD from Columbia Law School and a masters degree in Economic Law and Global Governance at the Sciences-Po École de Droit in Paris.

 

Nadia Murad

Published on . Posted in Asylum seeker, Blog, Refugee

In honour of World Refugee Day 2016, we present an original poem by Saleban (name changed), a refugee from an African country and a graduate of our Voices for Protection advocacy traineeship. Saleban pays tribute to Nadia Murad, a Yazidi refugee, rights activist and 2016 Nobel Peace Prize nominee. Through this poem, he seeks to highlight the struggle for survival of cultural and religious minorities around the world, and especially women, who often bear the brunt of war and hardship.

From Sinjar to Mosul.

From Mosul to Baghdad.

SHE was the one

Who had the guts

To expose the nuts;

The ISIS thugs; twenty first century’s shame.

That’s why, with her

GLORY’s got another name:

NADIA MURAD

 

From Sinjar to Mosul.

From Mosul to Baghdad.

It was SHE

Who freed us all

When she began to tell;

Who sent the stains

[That kill, rape and maim]

Into deserved hell

of degrading shame.

And who around

The beast’s neck

Hung a bell.

That’s why, with her

Honour, as well

Has got another name:

NADIA MURAD

 

When SHE pointed out

Her finger at

The lowest outlaws,

Raising up the call,

She dug a hole in the silence wall.

She cut the sword with a rose.

Long-living women’s cause.

Making the raped

Victorious of all.

 

SHE put her shoes

On her rapist’s head.

It was SHE who won

In the end.

The one to send

Her and our foes

Into deserved hell.

The one to dwell

In a heaven of a peaceful soul.

That’s why,

No one to let down

Or to sell:

NADIA MURAD

 

How many Nadia Murads, as victims

Do we have around the world?

How many Nadia Murads, as fighters

Do we have around the world?

What should be done for CHANGE?

If we, the World, look

into our eyes in the mirror,

Take action,

And give the proper answers.

Then we will be the VICTOR.

That’s why, GLORY

And HONOUR,

As the same,

Have got a joint name:

NADIA MURAD

 

The amazing refugee women of Hong Kong

Published on . Posted in Advocacy, Blog, Refugee, Uncategorized, Voices For Protection

Let me ask you, can you imagine living a life away from your home, in a situation where you had to leave your loved ones behind and seek asylum in Hong Kong?

The participants have been learning about famous women leaders and activists.

The first time I heard about Justice Centre Hong Kong was when I was doing my university assignment on asylum seekers and refugees in Hong Kong. Thinking about refugees, many questions came to mind: “Are they socially excluded in Hong Kong?” And if yes, “What can be done from the micro to macro level to make them a part of Hong Kong society?”

As a student social worker at Justice Centre, I have learned the answer to some of these questions. I have become particularly aware of the plight of women refugees in Hong Kong. Over the past few months, I have been involved with Voices for Protection, Justice Centre´s advocacy and human rights training programme for refugees. The intake that I have been a part of was a special intake just for women supported by HER Fund.

This week, on the occasion of International Women´s Day, we organised a special training for all women who have graduated from Voices for Protection across the four intakes. This was a leadership programme run by the leadership development consultancy Bridge. A large number of the participants were aware that it was in fact International Women´s day and were very excited to celebrate the day and themselves by taking part in this leadership programme.

To me, Voices for Protection is about self-transformation, capacity building, and social change. It gives women a platform to reflect their needs and strengths. In the different sessions, women have voiced their needs and wishes to contribute to the labour market and boost Hong Kong’s economy rather than just relying on the government’s support; they have expressed their wish for a fair and fast USM system; and they are eager to learn more about their rights.

It has been moving to see how some of the group members showed tremendous progress and change throughout their participation in the programme over the course of the past 12 weeks. Some of the participants had previously never been outside of their homes by themselves, but nevertheless came and took part in every session. They learned to read the MTR map to find the way on their own, and they gained the confidence to speak in front of the other participants at the sessions.

Building rapport and trusting relationships is quite vital in a social work setting. As a student social worker observing the different sessions, I could see how the group started forming and how the group dynamic changed as the programme progressed. I can still remember how anxious the women were to stand up and introduce themselves in the first few sessions; gradually they began opening up, and trust was built up among the women and the facilitators.

18 women refugees took part in the International Women´s Day Leadership Programme, led by Bridge

18 women took part in the International Women´s Day Leadership Programme.

Towards the end of this intake of Voices for Protection, we organised a field trip for all the women to meet with LegCo member Emily Lau at the Legislative Council. The visit proved to be an empowering moment for the women, and they all made an effort to prepare and speak up for their rights. This would not have been possible if the women did not have trust in themselves, the other participants or the staff and volunteers from Justice Centre. I was very touched when one of the participants asked me to read her script to make sure it was well-written, or when another woman rehearsed her speech in front of me. The women were exemplary representatives and advocates, and I am sure this must have been heard well by LegCo member Emily Lau.

The Voices for Protection traineeship is the first step towards changing the lives of asylum seekers and refugees in Hong Kong from an individual to a societal level. On International Women´s Day this year, the women graduates proved just how big of a difference the traineeship can make to them, both as individuals and as advocates for their own rights. The graduates were stronger, happier and more empowered than I have ever seen them before. I am proud to have had the opportunity to take part in this important programme, and to contribute to making a difference in the lives of refugee women in Hong Kong.

AnjuAnju Ghising is a second year Social Work student at the University of Hong Kong (HKU). She is a student social worker at Justice Centre through HKU’s Social Work Fieldwork Placement Programme.

Interpretation: Enabling Access to Justice

Published on . Posted in Asylum seeker, Blog, Fundraising, Information Sessions, Interpretation, Legal aid, USM

Posted by Ellen Pucke

A caseworker working with one of our service users

To me, being a social worker means prioritising the well-being and rights of those that are most vulnerable, in everything you do. In my role as Office Manager at Justice Centre, I have the opportunity to do that every day when making decisions about our operations, logistics, security, and policies. I balance the needs of our service users with those of the staff to ensure we are able to serve our community to the best of our availability. One of the most important ways we are able to prioritise the needs of our service users is by providing them access to interpreters for all appointments and information sessions at Justice Centre.

Interpretation is essential because our service users are survivors of war, persecution, and torture that have found themselves in a country and culture foreign to them; a country which does offer a mechanism for seeking protection – but in a language that may, in effect, make it inaccessible.

Many of our service users have some degree of proficiency with English or Cantonese, either because they learned it in their country of origin, or have dedicated extensive time to studying and practicing these languages once they arrived in Hong Kong. A moderate level of English or Cantonese certainly helps someone navigate Hong Kong’s systems, but when it comes to communicating about something traumatic and so critical to your future – could you express yourself completely and accurately in anything but your native tongue? Would you be able to comprehend legal jargon or describe distressing experiences in a second language?

More than 30 interpreters offer their talent and time to interpret for our clients on an ad hoc basis, in over 22 languages. Because of them we are able to provide our service users with support – allowing them to better understand their rights in Hong Kong, the process of applying for protection, and what the status of their case is; empowering our service users to work collaboratively with our caseworkers to prepare their testimony and legal documentation in an accurate way; and enabling them to work through traumatic experiences and acute mental health concerns with the guidance of a psychosocial counsellor.

Interpretation is absolutely critical for ensuring our service users have the best possible chance of accessing justice. One interpreter described her role as the “bridge between the caseworker and the protection claimant”. She said, “It bothers me when people cannot communicate as they are already in a desperate situation when they come here. Without interpretation, legal support would be impossible”.

I love working with our interpreters for many of the same reasons I love working with our service users – they’re from all over the world, they often know three or four different languages, they come from diverse professional backgrounds, they are eager to learn about the legal process and our advocacy work to improve the experience of people seeking protection in Hong Kong, and they are enthusiastic about holding on to their native languages and using it to help others. Many of our interpreters grew up in households in Hong Kong or abroad where they learned one or more language that is not commonly found here – such as Pashtu, Swahili, or Somali. They tell me they enjoy interpreting these languages at Justice Centre because it’s a way for them to stay connected to their roots. When I am privileged to facilitate that connection between an interpreter and a service user, it often reminds me of the strength found in Hong Kong’s diversity.

My heart is full each time a service user meets an interpreter of their native language at our centre; the sense of relief and hope is palpable. I would hope that interpretation services are prioritised and adequately resourced going forward within Hong Kong’s current protection system, in order to facilitate a smoother and fairer system for people seeking protection here. The value of this cannot be underestimated.

Please consider making a donation today: just HK$ 500 enables us to provide legal and psychosocial support to a protection claimant with the assistance of an interpreter. 

At the moment we are in need of interpreters for Amharic, Arabic, Bangla, Somali, and Tigrinya languages.  If you are interested please get in touch with Ellen at ellen@justicecentre.org.hk for more details.

1416593Ellen Pucke is the Office Manager at Justice Centre Hong Kong. She is also a Hong Kong-registered social worker.

Search the website

Contact

T (852) 3109 7359
F (852) 3422 3019
info@justicecentre.org.hk